How the FISA court supports the security state and subverts the constitution

The New York Times reports: In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said. [Continue reading…]

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4 thoughts on “How the FISA court supports the security state and subverts the constitution

  1. Norman

    With all due respect to every ones comments, there is only one solution to this problem, that is the end of humankind as we know it. The idea[s] that we can control this, like we did the financial meltdown, the freedom of the press, the continuous war on terror, war on drugs, who’s top dog in the world today, is only for those who by the “O”‘s tinkle sprinkle fairy dust. The “power corrupts” is just to powerful, no matter who you are, what oath you sprout, where you sit at the table. The only choice we have today, is waiting to get thrown under the bus.

  2. hquain

    The single most amazing thing in Lichtblau’s staggering article has to be his observation that FISA has become a parallel, secret Supreme Court wrt the 4th amendment. Lichtblau notes that every judge in this court was appointed by Roberts, and that 10 of the 11 were put in the judgeship by Republican presidents.

    With craven Obama happy to legitimize this bizarre construction, one can only step back and admire: revolutionaries of the world, this is how it’s done!

  3. Paul Woodward

    I agree. When the NYT reports that FISA has become “almost a parallel Supreme Court”, I’m surprised that this did not also trigger an editorial. Maybe there will be one later in the week.

  4. delia ruhe

    I know that Nazi comparisons are sooo last week, but some people might not know that they too established a second court, specifically to try those who openly criticized the regime.

    The regime didn’t much care if ordinary Germans grumbled about the regime or even told jokes about it around the Biertisch, but they did mind awfully if you stood on a soapbox to do it.

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